What’s Wrong with our Politics?

No, I’m not a lawyer, but this week – in the process of explaining how our government works, to someone else – I arrived at some personal insights regarding what’s wrong with our politics, which sat like a burr in my brain and would not be but set down. I share them humbly in the full expectation that some of the learned colleagues and honourable friends which inhabit GP will shoot me down in flames or tell me I am a slow learner. But, at least, in a democracy, they have the freedom to do so. So far….

Brexit has been the catalyst which has exposed the systemic and invasive cancer at the heart of our government political system. Britain is under threat like never before -not from invading armies, but because it’s best defence – its ‘constitution’ has been corroded. We have become ‘the frog in hot water’.

It has taken many centuries to build up what is now our uncodified constitution, drawn from custom & practice, key statutes and documents starting with Magna Carta and leading up to the reformed Parliament Act of 1949 which removed the power of the House of Lords to veto government legislation.

Since the European Communities Act that took us into the Common Market in 1972, based on consultation with the people, that inheritance of accumulated wisdom and experience, which has kept these islands peaceful for so many centuries (at least since the Restoration) has been vitally and profoundly eroded. Eroded to the point where the ‘person’ on the Clapham Omnibus – the very epitome of English respectability and culture – has marched on Westminster to make clear the extent of their disapprobation with our political representation. Having been in Parliament Square on the 29th March this year, I was astounded to see normally placid elderly neighbours there!

Behind the ceremonial and quaint jargon of parliamentary process there lie some fundamental principles which seem to elude our journalists, more obsessed as they are, with their own self-importance… effectively becoming ‘the story’. (The Channel4 and BBC debates this week have laid that self-aggrandisement, arrogance and ignorance absolutely bare for all to see.)

First, our democracy relies on the separation of powers. Ok, that’s not news, but it is a fundamental construct which keeps the executive, legislature and judiciary in their ‘boxes’ and underpins the balance needed to avoid abuse of power. It is essential to this argument.

Second, exemplified by the layout of the House of Commons, our democracy contains a safety valve. This makes Opposition an integral part of our political system. It is no ‘mistake’ that the second largest political party is referred to as ‘Her Majesty’s Loyal Opposition’. This recognises the necessity of allowing an opposing point of view, as being an essential element of our society, but one that is contained with the principle of loyalty to the Crown, so that civil disobedience should not be required in order to make one’s voice heard. Our democracy therefore is adversarial, as are our Courts, but this is contained and indeed endorsed by the Royal Prerogative.

Third, any functioning organisation has leadership structures – someone has to lead and those who do have to be accountable. This seems inherently obvious when considering military matters – you can’t run an Army – or a successful campaign – by committee. So we have a first past the post (FPTP) approach to elections, designed to elucidate a clear majority. There are numerous examples of other countries whose ability to pursue a cogent political agenda is mired in coalitions where everyone has a proportionate voice but little is achieved, apart from talking. Our FPTP system allows the prevailing mood of the country to take shape in the form of a cohesive governmental programme of legislation under the leadership of a Prime Minister. Our ‘two party system’ has been and should be the most efficient means of progressing what the people want, or at least it was until the arrival of Theresa May at 10 Downing Street. At this juncture without leadership, integrity or intellectual horsepower, the wheels came off, aided and abetted by the Speaker – the very person who should have been the guardian of our parliamentary system. Why do I say this?

The rot set in with the Blair government, and continued under Brown. With the signing of the Treaties of Maastricht, Amsterdam, Nice and Lisbon, using the power of the Royal Prerogative, these two set about undermining this country in ways which, at the time, few of us appreciated. The net result of these treaties was increasing integration with what was fast becoming so much more than just a ‘common market’. Blair’s desire for a political role in Europe and Brown’s need for easy cash meant they were totally motivated to fulfil their personal and political agendas at the expense of the UK but also because of their own deep left-wing agendas. I do not know whether either of them was acting as a foreign agent, but surely they could not have done more damage had they tried.

Another feature of this period was devolved administration to the Scottish and Welsh governments – the breaking up of the Union. (Notably and curiously also achieved by narrow majorities in Parliament and in public voting, but no one questioned those at the time…. no one read the comments!)

So the cumulative effect of this was, as Boris rightly identified, to make this country – and its Queen, vassals of the EU. When the Queen signed the above-mentioned treaties (something she could not resist without causing dangerous constitutional precedent and mayhem), each independent component of the separation of powers – the executive, the legislature, the judiciary – found it had a new master, the EU.

The Government (the executive) was at the beck and call of the EU: tied to its purse-strings, subject to its patronage and bound by the terms of membership nestled within the aforementioned treaties.

The legislature was similarly compromised. Every Act of Parliament has to be signed off by a Minister, stating (or not) that it is compliant with the European Convention on Human Rights (ECHR). The following was shown to a foreign national, a regulator, ironically a Muslim, who immediately said ‘why on earth would you want to sign that!”

And guess what, that definition of ‘human rights’ has now undergone much deliberate scope creep due to expanded interpretation. Much of this has been perpetrated by our once independent judiciary: so much so that our Supreme Court is no longer ‘supreme’. Decisions can be referred upwards to the European Court of Human Rights in The Hague.

One of the major tasks that will face a new government or a new Prime Minister is the extent to which the contract between Parliament and the People can be repaired. We rely on an adversarial mechanism to represent opposing views. But since both of the major two parties’ own party constitutions have been fundamentally undermined by tinkering and good intentions, it could be easily argued that neither the Conservatives nor Labour provide the requisite representation. First, because Brexit caused a fundamental realignment of British politics; but also because in their attempts to secure longevity, various party leaders have amended their constitutions in such a way that the nett result in both cases, is that it has become virtually impossible to defenestrate weak leaders. Cameron introduced the Fixed Term Parliament Act – which was well-meaning but left us with a lame duck PM in May. Miliband minor changed Labour’s rules to secure his own position and appease his Union backers, and they are now stuck with Corbyn. And with further layer of irony, each of those leaders had a personal position on Brexit which was opposed to their avowed Party line! The construct of opposing views has become so bamboozled that neither of the main political parties bears any relation to the manifestos they presented and as a consequence, the opposing voices within the population have no outlet. Conservative ‘leavers’ have been let down badly by May, her serial incompetence and lack of integrity: Labour ‘leavers’ will have been utterly confused and let down by their own Party which has failed to have a coherent position on Brexit until very recently. It is the recipe for a perfect storm.

However, I digress somewhat, the other pertinent issue here is to do with leadership and the quality of our political representation.

Under May, we have had no leadership. Just park that thought for a moment…

This Parliament also has set itself above the people it claims to represent and in my opinion has sailed very close to the wind indeed regarding the legitimacy of its actions with respect to Brexit.

The Referendum Act of 2016 specifically delegated the received Royal Prerogative to the people so that we could make our own decision about whether we wanted to remain in or leave the EU – as we did upon entry. The mechanism for doing that was Article 50 of the Treaty on European Union (TEU) which came into force in 2009 following the Treaty of Lisbon. Any treaty requires an Act of Parliament to make it part of our domestic law. The European Union (Amendment) Act 2008 does not actually ratify the Treaty of Lisbon, but simply adds it to the list of the treaties covered by the 1972 European Communities Act. We became vassals as Gordon Brown, socialist and financial genius, sneaked this in under the radar, despite the best efforts of William Hague.

The 2017 Act of Withdrawal from the European Union sets out to repeal the 1972 European Communities Act. But there is a logical impasse here, in fact several:

First, there are several Acts that apply to the EU, not just this one, so why only repeal one?

Even in looking just at the 1972 Act, surely repealing the legislation cannot be done partially – therefore does repeal of the 1972 Act invalidate the Article 50 exit provision?

If it doesn’t, then the Withdrawal Act surely means we left on 29th March this year.

If it does, then we left perhaps back in 2017 and no one realised it at the time?

In addition to that, the Withdrawal Act “confers power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU”, but of course, you could argue that the PM doesn’t possess this power – that may belong (in respect of Brexit) either with Parliament (Royal Prerogative) or with the People (Referendum Act 2016).

Without even considering ‘The Great Repeal Bill’ you have to wonder whether anything that has been done in Parliament regarding the EU, since 1972 has been legitimate legislation under our constitution. Certainly socialist manoeuvring, disingenuousness and manipulation laid the foundations for this confusion, unhindered by the incompetents within the Westminster bubble.

At the time I recall some fuss about why Brown chose to term this a Treaty when it wasn’t one. This week, I belatedly realised that it was to avoid giving due Parliamentary process to this mechanism, which signed away our sovereignty. How come there were no indicative or non-binding votes then? No Supreme Court actions from well-intentioned Liberal Democrats? No jumping up and down of hysterical media types? We signed away our sovereignty with barely a whimper. A sharp contrast to the rabid hyperbole currently prevalent.

My point is here that Parliament in recent days has been making a deal of fuss about the primacy of its sovereignty whilst failing to understand or honour the terms of its own mandate. And the mace is a potent reminder of the fact that that sovereignty is delegated. The mace symbolises the Queen-in-Parliament. Only now, the Queen has been forced into a logical impasse, signing away her own rights and with it, those of Parliament.

Back to leadership and the problems facing a new PM and a new leader of the Conservative Party. A fish rots from the head. That rot goes all the way to the bottom. It is a sad truth that voluntary organisations of all kinds seem to attract those who are intrinsically unsuited to the power to which they aspire. May exemplifies that. But there are plenty of ‘May’s’ throughout both political parties. Constitutionally, both parties have systems which promote only those whose claim to fame is political survival (generally through knifing their opponents in the back); driven by the need to bolster their failing egos and weaker competencies by pursuing personal, not organisational, agendas. The Conservatives in particular need root and branch reform right down to their grassroots level if their systems are to produce the quality of people need to get this country back on its feet – people of competency, intellect and integrity.

I keep coming back to that word – constitution.

As Immanuel Kant put it:” the problem of civil government can be solved even for a race of devils, if they be intelligent. Even the most self-interested actors will come to understand that a state is the best means of protecting their own interests against others, even if they would rather exempt themselves from the law. They would design institutions which could constrain all to obey the law and act as if they were governed by morality. In Kant’s words, the establishment of a lawful and peaceful state “does not require that we know how to attain the moral improvement of men but only that we should know the mechanism of nature in order to use it on men, organizing the conflict of the hostile intentions present in a people in such a way that they must compel themselves to submit to coercive laws.”

We need to reassert and protect our uncodified constitution; to make sure ‘magna carta didn’t die in vain’. Our constitution is emblematic of our society and its erosion is the problem at the heart of our politics. This is the focal point around which we ‘drain the swamp’ and the ‘swamp’ goes way beyond Parliament.

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